Taylor v. State

• Decision Date: 17 October 2002
• Docket Number: No. 06-01-00217-CR.,06-01-00217-CR.
• Citation: 93 S.W.3d 487
• Parties: Clayton TAYLOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

93 S.W.3d 487

Clayton TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 06-01-00217-CR.

Court of Appeals of Texas, Texarkana.

Submitted September 13, 2002.

Decided October 17, 2002.

Rehearing Overruled November 19, 2002.

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Michael D. Mosher, Law Office of Michael D. Mosher, Paris, for appellant.

Grant Sparks, Assistant Attorney General — Internet Bureau, for appellee.

Before MORRISS, C.J., GRANT and ROSS, JJ.

OPINION

Opinion by Justice ROSS.

Clayton Taylor appeals his conviction for possession of child pornography in the form of individual photographs allegedly found on the hard drive of his computer. He was tried in a single trial on ten separate counts. A jury found him not guilty on count one and guilty on counts two through ten. Each separate count alleged he was in possession of one specific photograph.¹ The court assessed his punishment at nine years' imprisonment.

Taylor contends that the trial court erred by denying his motion to transfer venue, that the State failed to produce critical exculpatory evidence which had been ordered produced by the trial court, that the State failed to provide copies of material physical evidence for defense inspection, and that trial counsel's failure to object to inadmissible hearsay deprived him of constitutionally-required effective assistance of counsel. Taylor also contends the trial court's admission of hearsay not subject to a recognized exception deprived him of his right of confrontation, as guaranteed by the Sixth Amendment to the United States Constitution, and that its admission of "highly prejudicial" extraneous "bad acts" violated Rules 403 and 404 of the Texas Rules of Evidence. Taylor finally contends that the trial court erroneously refused to admit a book into evidence and generally argues that "pervasive prosecutorial misconduct" and errors by the trial court as set out above deprived him of both substantive and procedural due process.

Taylor was indicted on the complaint of Mike Marshall, Chief Investigator of the Attorney General's Internet Bureau, as part of continuing investigations about the sale of child pornography over the internet.² The evidence shows Taylor was made the target of an investigation because his name was found in the records of Landslide Corporation, a business that had provided credit card verification for pornography websites. Landslide had been the target of a child pornography investigation, and its principals had been prosecuted and convicted for their involvement in child pornography. The State did not allege or prove the pictures the subject of this prosecution were purchased through Taylor's Landslide activities, and it appears Taylor's activities through Landslide ceased over a year before the warrant was issued in this case.

Marshall was the State's primary witness. His investigation of Taylor began in October 2000 based on the discovery of Taylor's name in the Landslide database. Taylor was a high school band director, employed in Red River County. Marshall and deputies from the Red River County Sheriff's Department commenced their investigation of Taylor, at Taylor's home, on his return from an out-of-town band competition trip. When confronted with questions about his internet usage, Taylor appeared to Marshall to be in a nervous, excited state.

Marshall testified that Taylor, after being given Miranda³ warnings, acknowledged accessing and downloading internet pictures of children under the age of seventeen years engaging in sex, as well as stories describing sexual activities between adults and children.⁴ Marshall described Taylor as being at all times cooperative with investigators and speaking freely about his activities.

Taylor provided to officers a hand-written statement, which was read to the jury.⁵ Taylor told the investigators he had been downloading this material for the last twenty months, but denied ever having any inappropriate contact with children. Taylor told the officers he was undergoing counseling for his behavior.

Motion to Transfer Venue

Taylor filed a motion to transfer venue August 20, 2001. His motion was based on his allegation that articles appearing in the Paris News, the latest of which appeared August 17, 2001, caused undue pretrial prejudice to him. The August 17 article set out not only the allegations of the charges against him, but also described all of the extraneous acts and materials the State intended to introduce into evidence. The article also described allegations of inappropriate contact (kissing) with a student,⁶ as well as types of allegedly pornographic photographs that were the subject of the two counts of the indictment that were severed.⁷ Attached to Taylor's motion, along with a copy of the newspaper article, were the affidavits of Taylor and two additional persons, Jeana Smith and Vickie Bryant, residents of Red River County, who stated under oath that, because of the existing knowledge of the case by members of the community, and because of the newspaper article, Taylor would be unable to get a fair trial in the county. The State filed no controverting affidavits.

On the day of trial, August 20, 2001, but before voir dire of the jury panel, the court conducted a hearing on Taylor's motion. At the hearing, Taylor called three witnesses: Jack Herrington, a former county and district attorney of Red River County, as well as Bryant and Smith, affiants, who testified Taylor could not get a fair trial in Red River County. Bryant and Smith testified — and stated in their affidavits — that the community was prejudiced against Taylor, that they (the community) wanted to "hang the sucker." Although the State presented no controverting affidavits or evidence, the trial court nevertheless carried the motion through the jury selection process. After the completion of voir dire and the selection of a jury, the trial court denied the motion.

A trial court may grant a change of venue on the written motion of the defendant in any felony or misdemeanor case punishable by confinement. The motion must be supported by the defendant's own affidavit and the affidavits of two credible persons, residents of the county of prosecution, stating that there exists in the county of prosecution "so great a prejudice against him that he cannot obtain a fair and impartial trial." TEX.CODE CRIM. PROC. ANN. art. 31.03(a)(1) (Vernon 1989). The credibility of the persons making the affidavits, or their means of knowledge, may be attacked by the affidavit of a credible person, which forms a factual issue to be determined by the trial court. TEX.CODE CRIM. PROC. ANN. art. 31.04 (Vernon 1989).

A defendant's proper motion to change venue entitles such defendant to a change of venue as a matter of law unless the State files controverting affidavits. Lundstrom v. State, 742 S.W.2d 279, 281-82 (Tex.Crim.App.1986). The reason for this rule is that "in the absence of controverting evidence, there is no issue of fact to be resolved." Id. at 282, quoting McManus v. State, 591 S.W.2d 505, 516 (Tex. Crim.App.1979). However, this right is waived by the defendant if he or she participates in a hearing on the merits of the motion and allows the state to put on evidence in such hearing, consequently rendering the issue one of fact for determination by the trial court. Id.; Cooks v. State, 844 S.W.2d 697, 730 (Tex.Crim.App. 1992).

In Cooks, the court held that the appellant waived his right to a change of venue as a matter of law by participating in hearings on the merits of the motion and allowing the state to put on evidence, without objection, controverting the appellant's motion, because when the issue was joined by the introduction of such evidence, a fact issue was then raised which required a decision by the trial court. Cooks, 844 S.W.2d at 730; see Stapleton v. State, 565 S.W.2d 532 (Tex.Crim.App. [Panel Op.] 1978).

The presentation of an application for change of venue, properly verified, makes it incumbent upon the trial judge to change the venue, unless the application is controverted in the manner prescribed by statute, or unless the controverting affidavit is waived by the accused, and evidence heard justifying the denial of the motion.

Stapleton, 565 S.W.2d at 533-34, quoting Cox v. State, 90 Tex.Crim. 106, 234 S.W. 72, 73 (1921); see Cooks, 844 S.W.2d at 730.

In this case, the State did not file any counteraffidavits. At that point, Taylor was entitled as a matter of law to his change in venue. However, a hearing was then conducted on the venue issue without objection and the motion carried pending the completion of voir dire. The State argues that, by failing to object and by his participating in this hearing, Taylor waived his right, as a matter of law, to the change in venue.

The Texas Court of Criminal Appeals described in Lundstrom the circumstances under which a defendant in this situation waives this right:

The defendant waives this right if he participates in a hearing on the motion when the State has filed no controverting affidavits.... "Where the defendant ... allows the trial court to hear the merits of the issue and to thus exercise its discretion in determining the issue of fact, he cannot thereafter argue that no issue of fact was raised and that he was entitled to the change as a matter of law." [Quoting from McManus, 591 S.W.2d 505.] Therefore if the defendant, though entitled to a change of venue as a matter of law, nevertheless puts on evidence concerning the reasons for the change of venue, and allows the State to do so, the issue then becomes one of fact for the trial court to determine.

Lundstrom, 742 S.W.2d at 282 (emphasis added) (citations omitted).

Although Taylor put on evidence concerning the reasons for the change of venue when the State had filed no controverting affidavits, the State failed to put on any...